Britain’s freedom of information laws are ‘working well’ – but who for?

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Disclosure statement

Christopher J. Murphy does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.

The government has announced its decision not to amend existing Freedom of Information (FOI) legislation by introducing fees for requests. This news has likely come as a surprise, albeit a pleasant one, to many supporters of the act, particularly given the seeming anti-FOI bias on the part of those who made up the FOI commission.

But, given the existing challenges faced by those who make use of FOI as part of their research, it is difficult to agree with the Cabinet Office minister, Matt Hancock, and his assertion that the act is “working well”. A recent article illustrated a number of almost Kafka-esque challenges experienced by users of the Freedom of Information Act – and my own recent experiences point similarly to a process that is not working well.

On July 22 2015, a supplement to the 2014 review into material held by the Home Office concerning historic allegations of child abuse, conducted by Peter Wanless and Richard Whittam QC, was released into the public domain. The attached correspondence between Whittam and Wanless and both the Cabinet Office and Home Office offers some pretty eye-opening admissions concerning departmental record-keeping practices.

In particular, the existence of “unregistered” collections of files and papers including, in the case of the Cabinet Office, a “store of assorted and unstructured papers”, known as “the Cabinet Secretary’s miscellaneous papers”.

This particular collection was closed in 2007, yet had accumulated over “several decades”. Papers from the series, dating from 1936-1951, began to find their way to the National Archives, quietly and without fanfare, in May 2013. But it was only last summer that the significance of this collection of material as “too hot to handle” began to dawn on officials – and civil servants have been given until 2020 to assess whether they will ever see the light of day.

Off-the-record

We don’t need to be out-and-out conspiracy theorists to consider such collections a matter of concern. The fact that such material has been deliberately kept off the official record-keeping radar is nothing short of scandalous.

Perhaps officials are able to offer a reasonable justification for the maintenance of unregistered papers, but it is easy to suggest that the main purpose is to ensure their continued secrecy, effectively keeping them outside the legal framework set down by the Public Records Act and, more recently, the Freedom of Information Act. The existence of such unsearchable and unknowable collections running parallel to properly documented departmental file material, does little to instil confidence in the public about the integrity of the official historical record that enters the public domain.

Yet public acknowledgement of a hitherto hidden file series is, sadly, not as surprising as it should be – in October 2013, the Foreign and Commonwealth Office “found” a huge tranche of papers at its Hanslope Park facility, estimated at more than a million files with detailed information about foreign affairs dating back from than a century, material that would greatly help with our understanding of our current foreign policy.

Yet even when the existence of such material becomes public knowledge, it is challenging to secure its release under FOI, the limitations of which are highlighted by my own experience in trying to access some of it.

File under frustration

On August 4 2015 I made an FOI request to the Cabinet Office, asking for information about the Cabinet secretary’s “miscellaneous papers” and for a copy of the catalogue of this collection that, according to the Wanless/Whittham supplement, was prepared during February and March 2015. While I received a prompt acknowledgement of my request on August 5, I did not receive a reply until September 21 2015, when I was informed that: “The catalogue is a sensitive document and will not be released.”

Too many secrets?Steve Parsons / PA Archive/Press Association Images

No further explanation as to the specific exemptions under which the catalogue was being withheld was provided. Following the necessary procedure, on September 24 I asked for the Cabinet Office to review this decision. I received an acknowledgement of my request later that day, but I did not receive a reply to this request until February 16 2016, when I was told that the information I had requested was being withheld under section 22(1) of the act, as the information was intended for future publication. I have since referred the case to the Office of the Information Commissioner.

The length of time the FOI process has taken in this case has proved incredibly frustrating, but the problem cuts deeper than that; there is something deeply concerning – if not farcical – when the Cabinet Office can simply state that a document “will not be released” in one letter, while in the next I can be denied the information because it is intended for future publication. One of these statements simply cannot be true.

So while we rejoice at the fact that we will not face an even more restrictive FOI regime in the near future, let’s not forget that the system we currently have remains problematic. Who, exactly, does Hancock think the act currently works well for; those who make the requests, or those who answer them?